Whether it’s custody, access, child support, spousal support, division of property or equalization, you need to find a way to resolve your issues with your spouse before heading to seek the services of divorce lawyers. The following are the six ways to resolve your outstanding issues.
1. Kitchen Table
How it works: You and your spouse discuss the issues sitting around the kitchen table after the kids are asleep. You resolve major issues without the help of anyone. You bring your lawyer the terms of agreement. Your lawyer will advise you about it. If it seems reasonable, your lawyer will create a legally binding separation agreement which will incorporate the agreed-upon terms as well as some additional details. You will return to the office to review the separation agreement when it is ready. Upon your approval,, we send a copy to your spouse. It is best if your spouse obtains independent legal advice (ILA) so s/he cannot later say s/he did not understand it. If your spouse refuses to get ILA, we will include a waiver of ILA, which is signed by your spouse and their witness, in which your spouse acknowledges they were told to speak to a lawyer but voluntarily are signing the agreement without ILA.
Pro: It is inexpensive because you are not using any professionals to resolve your issues.
Con: Many people are not able to resolve things with their spouse on their own and it ends in a big argument with more hurt feelings and frustration.
How it works: A neutral third-party helps you and your spouse discuss your differences and negotiate an agreement. Usually, lawyers are not present. Once completed, you bring the mediator’s report to your lawyer as it is subject to legal advice. Your lawyer will review the document with you and offer an assessment of it. If the agreement is still acceptable, your lawyer will create a legally binding separation agreement based on the terms agreed to during the mediation process. It is then sent to your spouse who should obtain independent legal advice from their own lawyer before signing it.
Pro: Although there is cost for the mediator, the cost is less than other processes because it is shared and may be subsidized by the provincial government. In most cases, resolution is achieved. It is a fairly speedy process and keeps the conflict to a minimum as you are forward focused.
Con: Although an impartial mediator can be very effective in helping you communicate your needs and expectations for settlement, the mediator cannot offer legal advice or express an opinion. Also, you don’t have someone on your side during the negotiations. This is difficult in situations where one spouse feels bullied by the other.
3. Collaborative Process
How it works: Collaborative Process is an effective way of resolving separation issues. You and your spouse will work with a team of professionals and commit to negotiate a settlement without resorting to court. To keep your legal costs to a minimum, you and your spouse will work with a Financial Specialist to resolve the financial issues. You will each work with a Family Coach so that the emotional issues won’t sidetrack the negotiations when developing a parenting plan. If one of you chooses to go to court, both parties will have to start over with new lawyers and professionals. Ultimately, issues are resolved with the help of your lawyers at a four-way or five-way meeting (with the involvement of the other professionals). The agreement is then incorporated into a separation agreement.
Pro: The advantage to the Collaborative Process is that it gives couples a way to find creative, personalized, dignified resolutions to their disputes. You and your spouse have control over the process and the outcome. Although trained professionals assist you to reach an agreement, the team approach is less expensive than going through the court system because it is so efficient. A lot of the work is done with one professional (instead of each paying for your own lawyer) so it results in less expense. The fact that the professionals are prohibited from participating in court creates an incentive to the parties and professionals to negotiate in good faith. Also, the lawyers become “settlement specialists” instead of planning out their litigation strategies since they will never be representing you in a court action. The process is forward-focussed and concentrates on problem-solving rather than finding blame and revenge. Settlements reached through the Collaborative Process are generally longer-lasting, less acrimonious and more cost-effective than going to court. We believe the Collaborative Process is the best process for clients.
Con: It is more expensive than kitchen table negotiations or mediation because you are involving more professionals, but it is substantially less costly than court.
See the Collaborative Roadmap Here.
4. Cooperative Process
How it works: Your lawyer will exchange emails or letters with your spouse’s lawyer in an attempt to negotiate an agreement. Sometimes four way meetings (involving you, your spouse and both lawyers) are conducted for face-to-face discussions of the issues. If agreement is not reached, either party may commence a court action and the same lawyers can represent you in court.
Pros: Often settlement is achieved without having to commence a court action.
Cons: Unlike the Collaborative Process, there is no incentive to negotiate in good faith. Almost all court cases start as a Cooperative case but agreement is not reached through negotiations. Starting off as a Cooperative Process does not mean it will end that way. It may end up in court if one of the parties decides to go that route at any time. Court is very expensive and you are giving the power to decide the case to the judge.
How it works: Your lawyer and your spouse’s lawyer will find a neutral third party who will first attempt to mediate an agreement between you and your spouse. The parties pay this neutral person jointly. Often, the neutral person is a senior lawyer but it can be anyone agreed upon. Sometimes, lawyers are present during the mediation stage. If an agreement is not reached during mediation, the mediator becomes an arbitrator with the powers of a judge. The arbitrator might hold a hearing (like a trial) in his or her office where the lawyers and clients present their evidence and urge the arbitrator to make a decision in their favour. After the hearing is complete, the arbitrator will present his or her decision. The final resolution must incorporate the arbitrator’s decision. Arbitration is very similar to the court process with similar rules and restrictions.
Pros: The parties can define the process. You won’t have to complete all of the complicated forms and processes inherent to the court process. You will be able to choose the “judge” and help design the process, unlike in the court system.
Cons: It is more expensive than most processes (but less than court) because of the involvement throughout of lawyers and the cost of the arbitrator. It can add to the hostility between the parties because each is advocating for their own solution and trying to make the other person’s ideas look less favourably. It pits you against your spouse. There is far less opportunity for creative solutions because it is based on the rights and obligations prescribed by law. In contrast, in a Collaborative case, you can design a resolution that works best for your whole family even if it is not prescribed by law.
How it works: Going to court is a last resort. Clients are rarely satisfied by the court process. It is expensive, time consuming and sometimes messy. It's often a lose-lose situation and it rarely benefits the family. The process usually takes 1 to 3 years to resolve the issues. The process is complicated, involving the completion of many forms and attending court and conferences with judges on numerous occasions. You lose.
Pros: Eventually, a judge will make a decision so you will obtain closure. The court can impose sanctions on an uncooperative or dishonest party. The court process is helpful if your spouse is unwilling to negotiate in good faith and in a timely manner.
Cons: Despite our best efforts to represent your side, the judge is ultimately responsible for deciding how the case is resolved - and hence, the judge determines your family's fate. Judges have little time to deal with your case, may not understand the dynamics of your relationship and are restricted in their choices by the law and precedent. The judges do their best, but it is a difficult task to be a family court judge. The court process is fraught with procedures and forms that take a lot of time and add nothing to the resolution of the case. Furthermore, the court process is an adversarial one. Each party is trying to make the other look bad and make themself look good. In the end, you will likely both leave feeling unsatisfied with the decision and perhaps feel more angry, hurt and resentful than before. This is why we encourage our clients to consider alternative means to court for their settlements. Of course, there are many cases that require the assistance of the court to settle outstanding issues. As a result, we are prepared to represent you in the court process, if necessary.